Opinion
DOCKET NO. A-5631-12T3
01-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY K. JOHNSON, Defendant-Appellant.
Adam A. DeSipio (DLA Piper LLP (US)), attorney for appellant. James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 13-0001. Adam A. DeSipio (DLA Piper LLP (US)), attorney for appellant. James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the Law Division's order following de novo review that 1) denied his motion to suppress evidence resulting from a motor vehicle stop that led to his arrest and conditional plea to driving under the influence (DUI), N.J.S.A. 39:4-50, and 2) found defendant guilty of DUI. We affirm.
I
At a suppression hearing in municipal court on September 11, 2012, the parties stipulated to the admissibility of the 911 call that lead to defendant's arrest, as well as an audiotape and unofficial transcript of the call.
On June 20, 2011, around midnight, a woman placed a 911 call to Somers Point police to report a "possible drunk driver" in a white Lexus and provided the driver's location. This information was relayed to another dispatcher who then radioed Somers Point Officer James Shields to respond. The woman subsequently identified herself and gave more details of the driver's conduct to the initial dispatcher, stating,
we have been following him for probably about 3 miles, he has been swerving into the other side of the road, he has been like breaking, slowing down to maybe about 10 mph, then speeding up [to] about 40 or 50 mph constantly, pretty much every time that a car drove by and he saw headlights he was swerving to the other driver['s] side[.]
This detailed information was never communicated to Shields, who stopped defendant based solely upon a description of his vehicle and location, without making any observations that defendant was driving in an erratic manner. Defendant was charged with DUI based upon a field sobriety test and a subsequent blood alcohol content test of .27 percent.
Defendant argued at the suppression hearing that Shields did not have probable cause to stop him because Shields was not informed by the dispatcher about his alleged erratic driving and did not observe defendant driving in an improper manner before stopping him. The municipal court judge denied the motion to suppress based upon his interpretation of State v. Galotta, 178 N.J. 205 (2003), reasoning that a police officer has probable cause to stop a vehicle based on an anonymous tip characterizing a driver as a drunk driver alone and without a description of the driving behavior. As a result of the ruling, defendant entered a conditional plea of guilty and reserved his right to appeal.
The municipal court judge also rejected as unbinding defendant's reliance upon our unpublished decision, State v. Maclay, No. A-4542-10 (App. Div. February 22, 2012), which held an off duty police officer's reporting of a "possible drunk driver" without any admissible evidence of alcohol consumption or erratic driving behavior did not establish an objective factual basis for a motor vehicle violation stop by a responding on duty police officer. For the reasons discussed below, the facts here are distinguishable, thus calling for a different result.
The Law Division also found there was probable cause to stop and arrest defendant for driving under the influence. While not referring to Galotta, the court relied upon State v. Crawley, 187 N.J. 440 (2006), cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006), and United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L.Ed. 2d 604 (1985), instead. The court stated that an identified 911 caller is a reliable caller and the dispatcher need not inform the officer everything that is said before the officer can "immediately respond and attempt to find the driver and make an independent determination as to whether or not that driver was impaired." The Court even appeared to suggest that the 911 caller need not have specifically mentioned the defendant's driving to consider the stop legal, when it stated:
My understanding and -- and listening to the [911] tape was that the information that the dispatcher had concerning the erratic drunk driving and the fact that [the caller] . . . had been following [defendant] was before Officer Shields made the stop. I think this -- that further supports my argument and my decision that Officer Shield[s] acted correctly, but as I indicated to [defense counsel], without that, I'm satisfied and I find that the - - the stop was a valid one, a legal one, an appropriate one . . . .
[emphasis supplied.]
Defendant timely appealed the Law Division's denial of his motion to suppress and de novo guilty finding.
II
Our scope of review of a Law Division's ruling on a municipal appeal is limited. We are bound to uphold the Law Division's findings on a motion to suppress if supported by sufficient, credible evidence in the record. State v. Elders, 192 N.J. 224, 243-44 (2007) (citations omitted). Only if the Law Division's decision was so clearly mistaken or unwarranted "that the interests of justice demand intervention and correction," can we review the record "as if it were deciding the matter at inception and make [our] own findings and conclusions." Id. at 244. (citing State v. Johnson, 42 N.J. 146, 162 (1964)).
Similar to the Law Division, we "should defer to trial court's credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000) (citing State v. Locurto, 157 N.J. 463, 474 (1999)).
Unlike the Law Division, which conducts a de novo review on the record below, Rule 3:23-8(a)(2), we do not make independent findings of fact. Locurto, supra, 157 N.J. at 471. However, "a reviewing court owes no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J. 328, 337 (2010). We exercise plenary review of legal conclusions that flow from established facts. State v. Handy, 206 N.J. 39, 45 (2011).
The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against "unreasonable searches and seizures." U.S. Const. amend IV; N.J. Const. art. I, ¶ 7. An investigatory stop is a "type of encounter . . . sometimes referred to as a Terry stop." State v. Privott, 203 N.J. 16, 25 (2010). An investigatory stop or detention is constitutional only "if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity." Elders, supra, 192 N.J. at 247. The State need not prove the defendant actually committed the offense involved. State v. Williamson, 138 N.J. 302, 304 (1994).
Terry v Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968).
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An investigatory stop of a motor vehicle is lawful if the authorities have a reasonable and articulable suspicion that violations of motor vehicle or other laws have been or are being committed. State v. Carty, 170 N.J. 632, 639-40, modified on other grounds, 174 N.J. 351 (2002). A police officer must act on "specific and articulable facts" and rational inferences from those facts. State v. Amelio, 197 N.J. 207 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009).
However, an officer need not make actual observation of illegal conduct to base his reasonable and articulable suspicion to stop an individual and conduct a search, but may rely upon reliable information communicated by others making observations based upon reasonable and articulable suspicion. In Crawley, our Supreme Court found it to be "common sense" that a police dispatcher who was "provided adequate facts from a reliable informant to establish a reasonable suspicion that defendant was armed . . . had the power to delegate the actual stop to officers in the field." Crawley, supra, 187 N.J. 449, 457 (citing United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976)). Moreover, in Hensley, the United States Supreme Court held that an arresting officer may stop a wanted person without possessing the information forming the basis of a stop when the dispatch is based upon reliable information supporting probable cause. Hensley, supra, 469 U.S. at 230-31, 105 S. Ct. at 681-82, 83 L.Ed. 2d at 613 (upholding police stop and search of defendant's vehicle solely based upon a "wanted flyer" from a neighboring police department) (citing Whiteley v. Warden, 401 U.S. 560, 568, 91 S. Ct. 1031, 1037, 28 L. Ed. 2d 306, 313 (1971)). On the other hand, a search conducted by an officer in the field is not protected by his or her good faith reliance upon insufficient information received from a dispatcher or others. Crawley, supra, 187 N.J. at 457-58.
In the context of stopping and arresting a driver for suspicion of driving while intoxicated, N.J.S.A. 39:4-50, our Supreme Court in Amelio upheld the stop and arrest of a driver based upon two 911 calls from his seventeen-year-old daughter that he was first causing a domestic disturbance, and then left the house drunk and drove away. Amelio, supra, 197 N.J. at 215. The Court concluded the tip was not anonymous, as the daughter identified herself, thereby exposing herself to criminal prosecution if her report was knowingly false, and communicated a commonly understood condition, being "drunk," which gave the police reasonable and articulable suspicion to stop and investigate. Id. at 214-15. In reaching this conclusion, the Court recognized that a report by a concerned citizen is viewed more credible than an anonymous informant because "'such a person is motivated by factors that are consistent with law enforcement goals.'" Id. at 212 (citing Wildoner v. Borough of Ramsey, 162 N.J. 375, 390 (2000) (quoting State v. Davis, 104 N.J. 490, 506 (1986))).
Applying these principles to this case, we conclude that there was reasonable and articulable suspicion to stop the defendant and investigate his condition. The police received sufficient detail from an identified 911 caller that defendant was driving in a manner that indicated defendant was intoxicated. Defendant was reported to be driving erratically by slowing down and then increasing his speed, swerving upon the approach of oncoming traffic, and driving on the wrong side of the road. As in Galotta, the information conveyed was "an unmistakable sense that the caller [was presently] witness[ing] an ongoing offense that implicates a risk of imminent death or serious injury to a particular person such as a vehicle's driver or to the public at large." Galotta, supra, 178 N.J. at 221-23. The fact that the arresting officer was not informed of this behavior by either dispatcher nor observed it himself prior to stopping the defendant's vehicle does not invalidate the stop. Similar to the situations in Hensley and Crawley, law enforcement's possession of reliable information established probable cause to stop defendant. To rule otherwise would distort constitutional meaning of a reasonable search and seizure, and unnecessarily burden police in preventing the often tragic occurrences caused by driving under the influence.
Affirm.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION